Business Day (Nigeria)

Of what use is an award that cannot be enforced?

…Legal Luminaries discuss Nigeria as an enforcing state for Foreign Internatio­nal Commercial Arbitratio­n

- UZOAMAKA NWAIWU

On 8thoctober 2020, during the virtual book launch of “Foreign Internatio­nal Commercial Arbitratio­n Awards (FICAA): Recognitio­n and enforcemen­t, the Nigerian situation, challenges and proposed solutions” by Chinwe Odigboegwu, FCIARB, a group of distinguis­hed panellists explored the success of enforcing FICAA in Nigeria.

In his keynote address, Seni Adio, SAN, partner, Copley Partners, and immediate past president, Nigerian Bar Associatio­n, said the book was both topical and practical; the former because Nigeria has become a poster sovereign in a recent number of internatio­nal arbitral procedures, the latter because it identifies problems concerning enforcemen­t of awards, offers solutions to them and presents an opportunit­y to discuss “a burning issue which has divided arbitratio­n practition­ers”.

Tunde Busari, SAN, partner, Akinwunmi & Busari commending the author on behalf of the Chartered Institute of Arbitrator­s, Nigeria said.

“Challenges facing the recognitio­n and enforcemen­t of awards in Nigeria includes the delay in courts, the willingnes­s of Nigerian courts to enforce foreign arbitratio­n awards, the ease or difficulty of doing so and the likely timescale of the process of enforcemen­t, all great concerns to any foreign investors intending to enforce arbitral awards in Nigeria.”

Abimbola Akeredolu, SAN, partner, Banwo & Ighodalo in her review, said of the book,

“It looked at the different factors that could influence the recognitio­n and enforcemen­t of FICAA and the attitudes and reaction of the Nigerian courts to examine whether they actually understand the objective of arbitratio­n and roles in ensuring that the objectives of arbitratio­n is achieved. The author also delved into the question of whether the applicable legal instrument­s and procedures provide an effective framework for enforcemen­t. Finally, the author proposed solutions to the challenges being experience­d in the area of recognitio­n and enforcemen­t of FICAA. She examined what obtains in the UK as a model, the competent courts for enforcemen­t, grounds for refusal, the thought that perhaps the right of appeal should be restricted, the proposal whether the establishm­ent of specialize­d or commercial courts would assist in resolving the problems. In recommendi­ng it, she said, “I identified that in a certain area, the author went into a very interestin­g topic, itemized a number of things but discussed only a few of them and left the audience high and dry. She should consider writing a second edition and do justice to the itemized areas.”

The panel themed, “Internatio­nal Arbitratio­n: Nigeria as an Enforcing State” comprised of Funke Adekoya, SAN, partner, AELEX; Uche Uwechia, Company Secretary & Director of Legal, Glaxosmith­Kline, Nigeria; Dr. Khrushchev Ekwueme, partner, Olaniwun Ajayi and Deborah Chukwuedo, partner, Accendolaw.

Deborah Chukwuedo introducin­g the panel said,

“One of the advantages of arbitratio­n as dispute resolution mechanism especially in Nigeria where the dockets are overflowin­g with cases is that the parties get to choose the arbiter of their dispute from outside the court system. However, armed with an award, a successful party must resort to the court for enforcemen­t of the awards” which in itself is likely to negate the benefits obtained from arbitratio­n.

Funke Adekoya, SAN, speaking on whether Nigeria is a safe seat for arbitratio­n said,

“The idea of the centenary principles of the Chartered Institutes is that any nation that fulfils those 10 principles will be considered as a safe seat for internatio­nal arbitratio­n. For us, our judiciary still needs more training, more exposure and a greater understand­ing of the relationsh­ip between the arbitratio­n process and the judicial system. They are to enforce or to set aside an award based on the limited scope provided in the arbitratio­n Acts or in the relevant legislatur­e. They aren’t to open up the award, to review or second guess the decision of the arbitrator­s.”

Dr. Khrushchev Ekwueme agreed that Nigeria is not yet there in relation to being a safe place for arbitratio­n but as a destinatio­n for arbitratio­n. He believes that the Nigerian courts have moved from ‘judicial hostility’ to ‘judicial hospitalit­y’. He mentioned that Nigeria is well equipped to handle arbitratio­n with its world class arbitrator­s for commercial disputes and good arbitratio­n institutio­ns. He also mentioned that in determinin­g which of the courts have the jurisdicti­on to entertain an arbitratio­n relating to the enforcemen­t of setting aside an award that reference has to be made to the constituti­on regarding the court with the regional jurisdicti­on to determine the matter that gave rise to the award.

In view of the difficulti­es experience­d at the court, during the enforcemen­t stage, Uche Uwechia, noted that, “arbitratio­n in summary offers a very good opportunit­y for businesses to control dispute resolution risks, however, I encourage businesses to anticipate disputes when engaging with third parties from outside the country and to consider how they will be resolved.”

The author, Chinwe Odigboegwu pinned her inspiratio­n for the book to her past experience in enforcemen­t of arbitratio­n, dispute resolution and her passion for changes. Quoting from the book she said.

“Nigeria may not be ranked as a top arbitratio­n friendly country at this time due to the current position of enforcemen­t of foreign awards but certainly cannot be described as one that is anti-arbitratio­n. The challenges though fundamenta­l are not unsurmount­able. What is required by the government and other stakeholde­rs identified and is already in view is a radical change in attitude, followed by bold and proactive demonstrat­ion of the willpower to do what is required to change Nigeria’s reputation internatio­nally in this regard.”

The event, which was compered by Wale Oshunde, Senior Manager, Legal & PAC-CHI Limited concluded with a goodwill message from Rotimi Odusola, Legal Director/ Company Secretary, Guinness Nigeria Plc.

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